December 2012

By: Alan E. Seneczko, Esq.

In a striking victory for common sense, the Seventh Circuit recently held that an employer’s disclosure of an employee’s history of migraine headaches did not violate the ADA’s confidentiality provisions when the employee disclosed his condition in an email explaining why he failed to report to work or notify anyone of his absence. (The employer subsequently disclosed the existence of the migraines in response to a job reference). In EEOC v. Thrivent Financial for Lutherans, Case No. 11-2848 (7 ^th Cir. 2012), the EEOC contended that the request, “Give us a call… We need to know what is going on.” constituted a protected medical inquiry because it resulted in the disclosure of medical information – which the employer was therefore prohibited from disclosing.

The EEOC argued that a protected, confidential medical inquiry under the ADA encompasses all interactions between an employer and employee that are (1) initiated by the employer; and, (2) result in the disclosure of medical information. In other words, the ADA’s reference to “medical exams and inquiries” included all job-related inquiries, not just medical ones, as long as medical information is revealed in response. The court disagreed, finding that the words “medical inquiry” meant just that. Since the employer had no prior knowledge of the employee’s medical condition or reason to believe that his absence was attributable to it, as opposed to any number of possible non-medical reasons, it did not make a “medical inquiry” when it asked him what was happening. As a result, it had no obligation to keep the information the employee revealed in response confidential.

This decision is important for three reasons. First, it reined in yet another attempt by the EEOC to expand the scope of a law beyond its obvious intent. Second, it helps clarify an employer’s obligation to keep medical information that it seeks confidential. Lastly, and perhaps most importantly, it exemplifies a very simple, but oft-forgotten principle in this post-modern era of HIPAA and confidentiality: If an employee is disclosing it to everyone, it ain’t confidential!